Testamentary Freedom and Its Restrictions in French and Italian Law: Trends and Shifts

Abstract

Freedom of testation has been defined by some as the most important individual right in the transfer of property mortis causa. It is, therefore, not surprising that the question of whether to expand or to limit it, has often been at the centre of debates and controversies.

Most countries do not grant freedom of testation without limitations, which are imposed for different reasons and can take different forms. This paper examines the scope of testamentary freedom and its restrictions in French and Italian law. It discusses the approach that both the French and the Italian Civil Code have originally taken in relation to restrictions to the freedom of testation and examines how the law has developed in the two legal systems, with particular focus on the most recent reform movements. In doing so the paper outlines instances where French and Italian law converge or differ and identifies trends and shifts.

Keywords: succession law, freedom of testation, comparative law